August 18, 2007

Electronic Surveillance

by emptywheel

James Risen and Eric Lichtblau have a report today supporting what many around these parts have suggested--that one effect of the amendments to FISA is to expand the kinds of surveillance the Administration can do.

Broad new surveillance powers approved by Congress this month could
allow the Bush administration to conduct spy operations that go well
beyond wiretapping to include — without court approval — certain types
of physical searches of American citizens and the collection of their
business records, Democratic Congressional officials and other experts
said.

[snip]

“This may give the administration even more authority than people
thought,” said David Kris, a former senior Justice Department lawyer in
the Bush and Clinton administrations and a co-author of “National
Security Investigation and Prosecutions,” a new book on surveillance
law.

Several legal experts said that by redefining the meaning
of “electronic surveillance,” the new law narrows the types of
communications covered in the Foreign Intelligence Surveillance Act,
known as FISA, by indirectly giving the government the power to use
intelligence collection methods far beyond wiretapping that previously
required court approval if conducted inside the United States.

These
new powers include the collection of business records, physical
searches and so-called “trap and trace” operations, analyzing specific
calling patterns.

Note that David Kris is pretty smart about these issues, so if thinks this is possible, then it probably is.

I'm also struck by the inclusion of trap and trace operations in this list. Somewhere, I expect us to be discussing data-mining again, and with trap and trace we're getting closer to data-mining.

In addition to reiterating some of the concerns that have been raised here and in other blogs covering this, Risen and Lichtblau give sketchy details of two meetings that have occurred since the passage of the bill, one I didn't know about...

These new powers are considered overly broad and troubling by some
Congressional Democrats who raised their concerns with administration
officials in private meetings this week.

[snip]

The senior intelligence official acknowledged that Congressional staff
members had raised concerns about the law in the meetings this week,
and that ambiguities in the bill’s wording may have led to some
confusion. “I’m sure there will be discussions about how and whether it
should be fixed,” the official said.

And one I did...

Yet Bush administration officials have already signaled that, in
their view, the president retains his constitutional authority to do
whatever it takes to protect the country, regardless of any action
Congress takes. At a tense meeting last week with lawyers from a range
of private groups active in the wiretapping issue, senior Justice
Department officials refused to commit the administration to adhering
to the limits laid out in the new legislation and left open the
possibility that the president could once again use what they have said
in other instances is his constitutional authority to act outside the
regulations set by Congress.

At the meeting, Bruce Fein, a
Justice Department lawyer in the Reagan administration, along with
other critics of the legislation, pressed Justice Department officials
repeatedly for an assurance that the administration considered itself
bound by the restrictions imposed by Congress. The Justice Department,
led by Ken Wainstein, the assistant attorney general for national
security, refused to do so, according to three participants in the
meeting.

So that's where you're at. The Bush Administration refuses to be bound even by the amended FISA law, even with its potentially broad application. And in response to Congressional regrets about the bill, Mr. Senior Intelligence Official says only, "there will be discussions about how and whether it should be fixed." [my emphasis]

Comments

Oh, the Administration wants it fixed alright. They want more leeway and immunity for everyone involved, and they want it retroactively. Any "fix" other than that, they will veto within seconds of the ink being dry. That is why any Democrat that blathers about "revisiting the mater after vacation" ought to be clubbed on the head right then, there, and on the spot. Furthermore, the Bushies have continuously, from the get go, said they will do whatever they want under his "constitutional" (a theory so full of BS it oozes) power. This is exactly why it was insane to have dealt with the devil on this issue in the first place. Absolutely insane.

It is becoming disingenuous for Democratic members of congress to be making statements about legislation after the fact - "OMG, we didn't think that 'electronic surveillance' meant that!". Rather than place meaningful definitions in the legislation that would definitively place such police-state tactics beyond the pale, the Democrats have their own version of a "legislative signing statement" - don't blame us, we told Bushco off the record what we thought the legisation meant, so we didn't see the need to put it in the legislation. This is becoming the new equivalent in the willful-blindness lexicon to "a little-noticed provision of the Patriot Act".

In my view all this (including the administrations claim that even more FISA changes would be needed when congress returns) shows how disastrous the Congress' actions were regarding FISA. And why? So they could go have some vacation time and get some serious fundraising done.

The left-0-sphere's reaction to this failure needs to be carefully thought out. Some feel that since our current democrats failed us, what we need is....More Democrats. I don't think blindly voting for people with D after their name will neccessarily do it. What is actually needed are new legislators who hold civil liberties as an absolute priority. Those who feel the same commitment to the constitution that Bruce Fein does. Currently, we have a large majority of the majority who apparently don't care all that much about constitutional issues.

Why not just let the miserable thing expire? We get no benefit from anything else. We should just reintroduce the House Bill, and let this dreck sink into the mists of time.

The administration will try to continue on without the legislation they say they don't need, and it will be interesting to see if the NSA will do it in the face of the coming Democratic administration.

Associated Press
WASHINGTON — The government must answer a watchdog group's demands to release records about the nation's classified terrorist spying program, the chief judge of a secretive national security court has ruled.

The American Civil Liberties Union, which announced the order Friday, said it was the first time the Foreign Intelligence Surveillance Court had responded to a request filed by the public

What are the odds that congress could repeal the amendment. My guess is slim to none. this is not going to be easy to fix. the horse is out of the barn, the barn is on fire, and the ferkin firemen look like a bunch of clowns.

So in some ways the telephone company is our last best hope--certainly not Bushco, apparently not the Dems. For some weird reason I keep thinking of Colonel (?) Mandrake trying to phone the president in Dr. Strangelove but not having the correct change as required by the telephone company. Maybe, at the end of the day, somebody's gotta require correct change?

Mimikatz - just thinking off the top of my Canadian (and therefore unqualified!) head here, but under Sarbanes-Oxley, are the telco lawyers not required to go to the Board of Directors of the telcos if they are aware of unlawful activity? Or would not the SEC require a restatement of the earnings of the telcos to account for the contingent liability of fines for millions of intercepted telecommunications? Are there any progressive organizations/unions that have enough shares in a pension fund or something that could get this on the agenda of an annual meeting and ask some uncomfortable questions? The only thing more powerful than the forfbranch are the corporations that pay their bills, so some shareholder activism might be more effective than political pressure - the Democrats seem quite willing to pretend outrage at this, because they have calculated there isn't much downside. Corporations might be hit where it really hurts here, therefore the push for retroactive immunity (or even Presidential pardons?)

massacio - I understand that theory, and that is likely how it will play out because, as I mentioned above, I think any useful fix would be vetoed. My rationale for wanting it bounced immediately, even if there is a veto, is as a repudiation of the implied cloak of legality for all of Bushco's criminal conduct that has been generated. It may be somewhat ephemeral, but I think it would be significant; if for no other reason than to inform the public and regain some momentum.

Bmaz - exactly, it is important to set some standards here. Right now, with respect to the 4th amendment, there is a 'don't ask, don't tell" compromise between Congress and the forfbranch, congress won't ask any hard questions about what is being done, and Bushco definitely wont tell. Digby said that the move towards conservatism is not a cyclic thing like the movement of a pendulum, that will swing back eventually, with the Republicans it is a tug of war, and you have to have the strength and determination to pull the rope back before you get hauled into the mud puddle. There is a lot of heavy lifting and pulling ahead of us to keep out of the mud puddle, and this is a good place to start, even if the Democrats don't see any political advantage.

Ishmael - Although there may be potential liability still (at least for actions up to two weeks ago); but that is at least part of what all the fuss over "letters" and "certifications" from DOJ has been over. Whether it was legal and proper or not to do so (and I say no), it is quite clear that the government has been giving the telcos sufficient permission slips to avoid any Sarbanes-Oxley issues. There are a few cases already that will be decent bellwethers on a more traditional front; two argued on appeal in the 9th Circuit last Wednesday and a third still in District Court in NDCA.

bmaz, I do think there is something to be gained from repealing the current act as a first step, but we would have to count the votes in both the house and the senate to make sure we could pass a repeal. If we failed to pass the repeal, and that is a real risk, given the fatheadness of our blue dog dems, it would be harder to pass the house bill, which is what really needs to happen. If we just pass the house bill, and have the leadership announce that no other bill will get a hearing, regardless of what the senate does, we beat the ghost of rove and his foolish clown princeling.

masaccio - Ok, maybe I didn't get what you meant the first time. So you are saying, instead of attempting repeal etc., they should just pass the original house bill and treat it as a type of superseding law? And if so, how is that any different if the Senate won't pass it, and even if they did it would be vetoed?

The current bill expires in six months. Perhaps I misunderstand the meaning of "expire", but if it has the usual meaning, and if nothing else happens, we go back to the prior law. The administration is left violating the law. The House Bill dealt with the foreign to foreign surveillance problem, whatever it was. It should have sufficed to meet the "threat", and will be enough if we pass it this time. Let Bush veto it, leaving himself with no protection.

At the meeting, Bruce Fein, a Justice Department lawyer in the Reagan administration, along with other critics of the legislation, pressed Justice Department officials repeatedly for an assurance that the administration considered itself bound by the restrictions imposed by Congress. The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting.

Who are the people advising Dem leaders on FISA? Do they have anyone who is an authority on, or a champion of civil liberties? As far as I can see, the only consideration given to limiting executive overreach was the six-month sunset that isn't even that. Bruce Fein knows what he is talking about, but he's not part of the congress. Who's in charge of this fiasco??

masaccio - ok, I see what you mean now. I am not convinced there is any overriding necessity for any of it, including the original House bill. Until they fess up with what exactly has been, and is being, done; I am not inclined to pass anything. And for the reasons i stated above, I think the Democrats need to start stepping up for what is right, even if it fails. And the talking points for the attempt I describe ought to be centered on the repeal being necessary because of the fraud, deception and criminality of the Administration; both in railroading passage two weeks ago and in general. Doing the right thing and telling the truth, even if the worthless Republicans and some equally pathetic Blue Dogs don't go along, looks far less weak and lame than being to timid to try at all.

Seamus, I think the Dems just more or less accepted the BS that McConnell and Bushco was dishing out. There was an attempt at modifying some of it, but Bush decided to get his panties in a wad about it, and members of Congress were in a hurry to get out of town for the break. So, they passed it thinking that they can go back and 'fix' it in six months or so.

I just had a great 'aha' as I was reading through these comments. Bush claims 'constitutional' authority to act as he pleases, in hopes that he can fool the general public. He is spinning it to affect opinion more than anything. Does he really believe that he has true constitutional authority? I doubt it -- but he is trying to create it with all of this BS.

I don't know how to shake anyone in Congress up enough to get them to stand up to the president and his agenda. They DO seem to have forgotten who they are supposed to be working for, though. My congressman scheduled a series of five 'townhall' meetings across our district, each of which was scheduled to last one hour at 6:00 pm. Since most of this district is south of where I live, and I work about 20 miles north, there was no way to attend. In other words, I suspect they were scheduled the way they were for a specific reason -- to minimize questions and give him a way to bail out if things got too close for comfort.

Ishmael - You might not have been back yet, and therefore may not have seen them, but there were some great posts and superb comment discussions here on the civil and appellate cases in the 9th Circuit I was referring to starting either tuesday night or wednesday morning through maybe thursday night. Worth going back and looking at if you didn't catch them.

The latest batch of FISA amendments may expire in six months, but approved programs authorized pursuant to them can last twelve months beyond that, or until a couple of weeks after Shrub leaves office. It would be far better if Congress had the muscle to change the law now. If not, forcing Bush's veto puts his name on that garbage instead of a Democratic Congress'.

Going forward, the answer is certainly more D's in both houses, but the correct ones. Quite a few of the sitting D's shouldn't return; they'll vote with minority R's and obstruct recovery operations after Shrub finally stops playing and goes home for dinner.

One of the new Congress' top priorities ought to be strengthening the Presidential Records and Hatch Acts. Otherwise, Shrub will veto access to his and his daddy's papers until hell freezes over. We also don't need a Congress with an overwhelming majority of Dems to get soft and commit some of the same corruption as this bunch.

Well said, Earl. Major Danby at DKos had a diary titled "DKos must STOP making fascism pay off for the GOP" that is well worth the read on a plan going forward for "more D's in both houses, but the correct ones." Also outlines how to 'correct' the behavior of those that stay in office.

There's something about all this FISA stuff - spying on Americans with no probable cause or warrants, the Ashcroft sick bed saga, the threat of resignations of guys like Comey and Mueller - not the biggest supporters of civil liberties and the whole rush to sign the new FISA amendment before a congressional recess and congressional Dems playing like they got fooled, did not know what was in it or we had to do something to give Cheney what he needs now but it will sunset in 6 months and then we will get it right - that really makes me sick to the stomach that we have lost something fundamental - something that is core to what is America.

Isn't the reality that we have already crossed the rubicon?? That both Repubs and Dems in Congress have played an integral role in enabling Cheney and the judiciary is playing its role too by not allowing any cases that challenge these activities that impinge on basic individual liberties to proceed due to "lack of standing".

Are we now legally and officially an authoritarian state that is going to put the Stasi to shame? I am ever mindful of Sen. Church's warning:

That capability at any time could be turned around on the American people and no American would have any privacy left, such is the capability to monitor everything: telephone conversations, telegrams, it doesnt matter. There would be no place to hide. If this government ever became a tyranny, if a dictator ever took charge in this country, the technological capacity that the intelligence community has given the government could enable it to impose total tyranny, and there would be no way to fight back, because the most careful effort to combine together in resistance to the government, no matter how privately it was done, is within the reach of the government to know. Such is the capability of this technology.

I dont want to see this country ever go across the bridge. I know the capability that is there to make tyranny total in America, and we must see it that this agency and all agencies that possess this technology operate within the law and under proper supervision, so that we never cross over that abyss. That is the abyss from which there is no return.

bmaz, again I don't disagree that trying a repeal is a good idea. I think the information the republicans leaked supports the need for the foreign to foreign surveillance changes, and I assume we can verify enough to insure that that goes forward. I'm really sure we need to count votes before we do the repeal thing, because losing is a disaster.

The current bill expires in six months. Perhaps I misunderstand the meaning of "expire", but if it has the usual meaning, and if nothing else happens, we go back to the prior law.

From what I've read, the law may expire but anything authorised under its provisions stays in effect for another year. Curiously, that's just after Bush fucks off back to his pig farm. (On preview: Earl of H. beat me to it.)

From the legislative side, I'd say the horse has bolted. The issue now is whether a court will grant someone standing for a constitutional challenge. If it appears that the new rule is 'we can violate the Fourth Amendment by declaring any violation a state secret', then that creates a whole new issue.

One of the new Congress' top priorities ought to be strengthening the Presidential Records and Hatch Acts.

Well, the reason the PRA carries no real penalties is because systematic violation rests on the shoulders of the preznit, and is thus impeachable. Likewise, the Hatch Act.

Masaccio and bmaz
Here's a thought from EPUville. I like the tactical idea of letting the existing law expire, instead of attempting to overturn something a majority supported. Yet this leaves a residue of a problem if this matter should ever find its way into the courts. There, will be the argument that the intention of congress was to support the program. Even if allowed to expire, there was at one time the view in congress that the surveilance activity was a good and proper thing for the government to be doing. Thus what is needed is a clear statement to the contrary, a repeal.

R.H. Green, that might be an argument, but I think the legislative history seriously undercuts it. I think allowing it to expire demonstrates the definitive congressional intent.

pseudonymous in nc, you are right about the extended effects of the law, which is a solid reason to support an effort to repeal. I still think failure to repeal is a disaster to be avoided if at all possible. I am aware that Bush will veto the repeal, but that doesn't undo the damage the vote will do to the legal position of telcos and other collaborators.

I deeply respect the opinions of all here on this issue (well, except Jodi of course) and it appears that we are all on the same page; with the only exception really being what effect an attempt to repeal that failed would have. For the life of me though, I don't understand what disaster looms from an attempt to do the right thing by the Constitution. In fact, I think there are a large block of people that are going to be disaffected by the failure to make such an attempt. There was a Blue America candidate forum at FDL today where Howie Klein was talking up a chap by the name of Dr. Steven Porter that ran last time as a progressive Democrat, but this go round is running as an independent because the Democrats are not standing up for the right things. If the Democrats keep being timid, especially when it comes to protecting the Constitution and it's rights and liberties, there is going to be a lot more of that. I can see keeping your hole cards, and playing the percentages, when it comes to policy disputes, even critical ones, but not the essence of the Constitution and Bill of Rights itself. For that you fight tooth and nail, with no quarter, no fear and to the death. You do what is right.

"If it appears that the new rule is 'we can violate the Fourth Amendment by declaring any violation a state secret', then that creates a whole new issue." - pseudonymous in nc

That, in a nutshell, p in nc, is exactly what "our" government was effectively arguing to a Ninth Circuit appeals court panel last Wednesday, in two separate cases. Will that panel of judges take it upon itself to dig deep and do the aggressive due diligence to fully understand and critique the reasoning that underpins these specious "state secret" claims (about evidence that in general terms sufficient for standing has already been made known to the plaintiffs), unlike our Executive Branch-deferring Legislative Branch? I have no idea, but Judge McKeown was certainly working hard, at least, during both oral arguments.

I want to elaborate a bit on the topic of the "Blue Dogs" and whether they were really somehow the FISA deal-breaker in the House, despite the best efforts of Pelosi, as many in the blogosphere seem to be inclined to argue:

First, BD Mike Arcuri and BD Dennis Cardoza are on the powerful Rules Committee, and are thus (presumably willingly) answerable in large part to Nancy Pelosi and the leadership. They would have been involved in the process that led up to the votes, and I know Mike Arcuri spoke clearly on the floor in favor of the House FISA bill, and I believe against the Senate version (although of course he knew by then that the deal had been struck to make it law). BD Jane Harman seemed to be one of the most authentic voices in favor of the House FISA bill that Friday - and she, as one of the handful of members on the House Intelligence Committee, was in a position to understand the issues at stake. Thirdly, EJ Dionne exonerated BD Heath Shuler and BD Patrick Murphy in his column last week, in which he stated that both Shuler and Murphy were ready and willing to make a stand for the Constitution, and forcefully argued for that approach on Saturday in a closed leadership meeting with about 20 people present:

At one point, according to participants in the Pelosi meeting, the passionate discussion veered toward the idea of standing up to the administration -- even at the risk of handing President Bush a chance to bash Democrats on "national security," as is his wont.

Several members from swing districts -- including Reps. Heath Shuler of North Carolina and Patrick J. Murphy of Pennsylvania -- expressed openness to having Congress stay in town to fight if important constitutional issues were at stake.

http://balkin.blogspot.com/2007/08/tale-of-capitulation.html

Murphy held firm, while Shuler ended up voting for the Senate-passed FISA bill in the end. In addition, BD Joe Donnelly apparently (per information in FDL comments) has publicly expressed regret about the passage of the Senate FISA bill, indicating that he would have preferred that it not come to the floor at all (though he too voted for it in the end).

So I count 5 Blue Dogs, even with the limited knowledge that we have, who were prepared to do the right thing by the Constitution, if and when they were given the option to do so by the House leadership. They, and the rest of the caucus, were not given a fair chance at that option, as we know [two-thirds to pass the preferred bill, and simple majority to pass the disfavored bill].

One thing this indicates to me is that - assuming based on these indications that the majority of Blue Dogs would in fact have been prepared to defend the Fourth Amendment if given the chance - in the event of a motion to recommit by the Republicans aimed at replacing the House bill with the Senate bill [which would have been allowed if the House FISA bill had been brought up with a favorable majority-vote non-suspension rule], that motion would have failed, perhaps even without Pelosi needing to enforce caucus discipline on the vote. And if that would have been the case, then not one damn thing was preventing Pelosi from passing the House FISA bill except the desire to appease Bush and/or to take off for vacation so as not to interfere with, for example, the kick-off of the AIPAC-sponsored trips to Israel for first Republicans, and then Democrats.

Jonathan Alter in Newsweek adds a couple of additional twists to this saga, apparently from sources he has inside Congress, in a very good article about this travesty:

http://www.msnbc.msn.com/id/3672516/site/newsweek/page/0/

Unlike the Dionne column, Alter's piece makes it sound like the decisions were all finalized by the leadership by early Friday evening, in both the Senate and the House (the timelines also bear this out). Whatever the leadership meeting on Saturday morning was hashing over, two closed-door House meetings were held on Friday, according to Alter, that seem to have determined the course of action on FISA - and Alter names John Conyers as a key voice advocating that the Democrats cave to Cheney and Bush:

Then the Democrats said: "Wait a minute! That's unconstitutional!" Right? Actually, no, they didn't. Even liberals like Rep. John Conyers, chairman of the House Judiciary Committee, argued in two heated, closed-door meetings on Aug. 3 that the Democrats might as well cave. Otherwise, they would be pounded during the August recess for ignoring national security and destroyed as a party if the country were actually attacked. Even though the leadership and 82 percent of House Democrats voted against the bill, they did not block it, delay the recess and hold the Congress in session. The private excuse was that the liberal base wouldn't be satisfied no matter what they did, and that Senate Majority Leader Harry Reid couldn't make the more conservative Senate go along anyway. Apparently, there's always an excuse for leaving for vacation on time.

Note too that, as I understand the rules, the Blue Dogs had no power to force a 218-signature 'discharge petition' by siding with the Republicans in favor of the Senate-passed FISA bill, because the damn thing had not even been filed in the House, never mind assigned to a committee for hearings and mark-up. Time was also too short to take advantage of that process for the bills that had been filed, like Heather Wilson's administration FISA wish-list, for example - and that bill would have required a conference with the Senate anyway. So that's one less cover story that Nancy Pelosi (and her apologists) can use to try to excuse away her responsibility for the passage of this unConstitutional bill.

Finally, if 48 "Blue Dogs" have effective veto control over Nancy Pelosi because they threaten to overthrow the caucus by voting with the Republicans in order to get their way, what power do the 70 "Progressive Caucus" members attempt to wield over her as a counterweight to the Blue Dogs? Why would they remain silent in the face of such 'minority of the majority' manipulation by the Blue Dogs? Or are these coalitions just convenient boogeymen for predetermined, leadership-blessed outcomes that Pelosi and Hoyer and Emanuel would rather not publicly "own" for one reason or another? [Take a look sometime at the photographs of the "Blue Dogs" - one Hispanic woman, one or two Hispanic men, two black men (both from Georgia), five white women, and 38 white men. What demographic of Congressional Democrats is this war-debt-enabling "coalition" really trying to distance itself from, and why...?]

It seems increasingly clear to me that Democratic caucus unity is witheringly enforced when the leadership so desires, and that the real problem we, the people, have is that once elected to Congress as a member of one of the two political parties, the code of omerta applies, and public criticism of one's party leadership by rank and file members is simply not done. Meaning reforming the party from the "inside" may be a virtual impossibility without some sort of public mutiny by principled incumbent Democrats - those who wish to truly oppose gross abuses of Executive Branch power and to assert long-dormant Legislative Branch authority and thus checks and balances against an increasingly-imperial presidency, and to that end are willing to break the code of silence, and risk losing their seats, to tell the public which Democrats (especially in positions of leadership) are standing in the way of performing those vital Constitutional tasks. Without that information, we seem to be shooting in the dark, and as likely to hit friend as foe in our efforts to hold the most responsible actors to account, for the ongoing failure by the Democratic caucuses in the House and Senate to honorably fulfill their Constitutional duty to the nation.

Albert, just to be clear, I was not arguing above for just 'better' democrats, although that might be fine. But what I am actually arguing for is lawmakers regardless of party (including, and perhaps especially, independents) who place bedrock constitutional values above party. In meaningful ways, legislators self-identify with party rather than with branch of government, and this is a real problem, imo.

pow wow,

thanks for putting together the dem. collapse story as well as can be at present. If I read you right, I am in total agreement that--until we clearly understand what happened with that FISA vote--it is premature for the left-0-sphere to be launching off to obtain the cure for what happened. Simply because we have not yet fully diagnosed the problem. I've commented at FDL and Greenwald with this same thought. We need a full diagnosis on this prior to running out and buying the Rx.

The Justice Department, led by Ken Wainstein, the assistant attorney general for national security, refused to do so, according to three participants in the meeting.

A bit of trivia.....

Ken Wainstein is the "Wainstein" who is mentioned in Mueller's notes as possibly attending the 10AM meeting on 3/9/04 at FBI headquarters that Mueller had before meeting with Cheney, Card, Gonzales etc at Noon. (The meeting that included Comey and Goldsmith with Chaeny, Card, etc did not happen until 4PM.) At the time, Wainstein was Mueller's Chief of Staff.

Looks like Conyers and Pelosi have to be targets, rather than all of the Blue Dogs, then.
I had hopes that things would get turned around with them in charge, but it looks to me like they've fallen victim to the 'DC Power' disease and forgotten why they wanted to be in congress in the first place. Or, probably more accurately, the reasons they gave the voters for sending them to DC, which are not necessarily the real reasons.

I earlier neglected to thank Emptywheel, which was stupid of me. I hope she will continue to dig on this until we clearly understand what happened. This is not whipping a dead horse. It's important 'forensic journalism'.

I am not saying we shouldn't go for repeal, just that we need to count the votes to make sure we can pass it. If we don't, there are a bunch of dems who are likely to side with republicans and this Jodi person and block the passage of the House Bill because it doesn't go far enough. I identified them as blue dogs, which was unfortunate, because there are others who think of themselves as security hawks who want more spying. Ishmael's 18:44 post identifies this problem better than I did. We neutralize this group by only offering the House Bill.

Jodi and the other trolls who comment as Jodi, are imvho at the core of the political pressure. Vichy Dems fear that if they don't abandon the Bill of Rights, "big government" Republicans will blame them for the next attack.

Instead of "less government, all of a sudden, most self-anointed "conservatives," now want the government "anywhere" in addition to the corporate welfare that they already enjoy from the Bush Administration. At the same time, however, they want lower taxes too.

- Goldsmith's OLC opinion
- Gonzo's Mysterious Document
- Olsen's presence as a witness
- Why the en masse resignations?
- Cheney's role
- Who Made The Call?
- The Confrontational Meetings during the week before
- Yoo's secret channel to Addington
- One Program?
- Who Controls the Compartmentalization Scheme?
- Was Ashcroft blindly certifying for two years or more a blanket 'Program?'
- How did BushCo battle back to re-claim control of OLC?
- What about Bybee's pay-off/reward of a Judgeship?
- Gonzo tries to bully the AG - Ashcroft not playing ball - Gonzo becomes the AG!

The Whole Truth of this "Democracy Saved or Swindled?" episode needs to be known before a revision of FISA is undertaken.

It doesn't make sense to negotiate "reasonable controls" with totally untrustworthy bargainers. The only way to underwrite the risk with BushCo is to implement a "Trust but Verify" policy.

If not, Bush will just hide his dirty work somewhere different than where it's found, everytime.

Pow wow
Maybe it’s time to start “shooting in the dark” to force “some sort of public mutiny by principled incumbent Democrats – those who wish to truly oppose gross abuses of Executive Branch power and to assert long-dormant Legislative Branch authority…”
I believe that my Representative, Tammy Baldwin from the 2nd CD, Wisconsin is one of those “principled incumbent Democrats”. But as long as she is willing to hide behind Pelosi’s cloak of secrecy, how would I know? I might be dead wrong.!
If you can fashion some shots at Congress that might force her to either come clean or dig deeper into her hiding place, please do it!

Thanks for your explanation of what likely happened. Common sense has me convinced that the FISA amendment would not have passed unless Pelosi and Reid and the Dems congressional leadership wanted it passed. I would like to know why they wanted it passed? The real reasons. I have my suspicions of why but want to believe there are other reasons that of course pass the smell test.

Amen to what pow wow and others here have said regarding Dem leadership and its direct involvment in the worst of the travesties. Very little to distinguish (in every sense of that word) the Dem leadership for the Rep leadership on issues like habeas, wiretaps, protection of illegality in the Exec branch, torture of illegally detained and rendered prisoners, etc. Lip service that ends up being applied directly to the buttocks of Executive.

Re: why not just let the legislation expire - here is my understanding of what the supposed original issue was (and I am not a techie at all, so this may not be correct on the tech front).

Under FISA as it stood, no warrant was needed for electronic eavesdropping for "foreign intelligence" for up to a year, with certain caveats. The AG was supposed to be certifying - under oath - that (a) the surveillance is directed SOLEY at communications EXCLUSIVELY by and among "foreign powers" and (b)if there is acquisition of technical intelligence - other than the spoken communications of individuals - that acquisition is only from "property or premises under the open and exclusive control of a foreign power."

Ok - so with respect to "spoken" communications, as I understand things, the "US Switching Stations" should not have been an issue, bc spoken communications get an exception. The stories don't really deal clearly with this and I may be wrong, but that's my understanding. I think they have tried to blur/muddy this by talking how we did not have this "us switching stations" issue in the past bc of changes in technology, but I don't think that is really the issue. FISA contemplated voice grabs without respect to where they were grabbed and US phone lines were contemplated (e.g., calls from the Korean axis of evil embassy phone line to the Iranian axis of evil embassy phone line) from everything I can find.

However, now we have all these oodles of emails and those kinds of transmissions that are not spoken are are being conducted via phone lines. So, as best I can parse, there seems to have been a recent ruling that, when those interceptions of non-spoken transmissions involve snatching the information by use of a property or premises that is NOT under the exclusive control of a foreign power (like the US based secret room in the EFF litigation), then there has to be a warrant.

So my understanding of why the would not want to just let the legislation lapse is that there is a belief that the kind of "methods and source" at use are such that it would be beneficial to allow foreign to foreign transmission of emails to be intercepted via a US switching station, with no warrant and only the yearly AG certifications.

Now, the old FISA had two more parts of the warrantless certification from the AG, (c) that there was "no substantial likelihood" they would, without warrant, be intercepting/acquiring "content" of "any communication to which a United States person is a party" and (d) that minimization procedures are met.

Now someone who understands the tech part better will have to explain this to me, but is there a good way to collect only email info that doesn't involve a US citizen? Or to collect meta data and distinguish it from "content" etc?

In any event, I think there is some kind of concern that they have convinced some members of Congress is legitimate that fax/emails or other non-spoken commucnications from foreign power to foreign power should be able to be handled by the annual reports and certifications procedures and not warrants.

This is somewhat separate and apart from the "Al Qaeda is Calling" program where they have admitted to wiretapping US citizens on US soil with no warrants, where "they believe" that one party to the call is "al-Qaeda" (or an "al-Qaeda like" group - you know, like the al-Quakers that Rumsfeld was surveilling).

They believe, for every call or email that's made
Al-Qaeda grows,
They believe that even in the darkest bedroom
a camera light should glow
They believe that for every complaint about Bush, the man
a rendition should be planned

They believe
They believe

Sorry, that just popped into my head. I'm not sure whether they have determined yet if thoughts popping into someone's head are now subject to forcible extraction with no warrant from a US citizen on US soil - but I'm guessing the answer is D'uhYes.

So - - to get more focused: foreign to foreign emails. Do you think they should be able to get them with no warrant and based solely on the AG certification if a US switching station is used. If so, they might want legislation to address that. McConnell grumbled about how he was signing off on all kinds of warrant applications for "know al-Qaeda operatives" just bc of this recent ruling.

Of course, I guess I kinda wonder why they don't HAVE warrants already for "known al-Qaeda operatives" so they can engage in broader efforts than those available under the warrantless, limited scope, efforts. But hey - why ask those kinds of questions?

I also have to ask - why does everyone assume that all foreign intell, even foreign to foreign, is ok for the Exec to engage in without meangingful oversight? Should he be able to surveil the serious fraud crew in London and sell the info to BAE? Or gift it to his friends the Saudis to duck prosecutions? Could he send in the US military to raid a Swiss office with the evidence of the BAE payoffs and steal all that info to keep his pal Blair from scrutiny?

The Presidency of the US is a limited and enumerated powers position. There are penumbras here and there, but the fact that some activity is a foreign to foreign activity does not equate, by itself, to unchecked Executive branch power. fwiw

Mary - "Of course, I guess I kinda wonder why they don't HAVE warrants already for "known al-Qaeda operatives" so they can engage in broader efforts than those available under the warrantless, limited scope, efforts. But hey - why ask those kinds of questions?"

Exactly. Furthermore, how many of these communications do they really have? Why can't the bundle them up and put them in a warrant application within three days? I just find it intellectually impossible to see how there any problem that was in danger of costing us flag and country; as opposed to the Administration opportunistically taking advantage of the meek and weak Democrats, and their precious vacation and fundraising time, to further expand their unnecessary powers and start cloaking themselves and their co-conspirators from criminal and civil liability.

The original issue re had in this stuff was the complaints from the FISA court concerning foreign to foreign warrants. Allegedly, the FISA court insisted on a separate warrant for each such search, possibly for the reasons described by Mary. The administration was sending more and more of these warrants, to the point that it was interfering with the day to day work of the judges on the FISA court, who, after all, are regular judges with regular caseloads who also serve on the FISA court.

This is the problem fixed by the House Bill. As I understand it, this is the only thing fixed by that bill, which otherwise doesn't touch the FISA act, and so, can safely be passed.

masaccio - If that is the case, then I am willing to listen and address it if necessary. But I have not heard any credible evidence that the FISA judges were overwhelmed; in fact, the inferences they have put out is to the contrary as far as I know.

masaccio - as I recall, it wasn't all foreign to foreign that caused the issue, but rather those that were using us based interception modalities. Technically, under the FISA statute, I think that might have been a correct ruling and I also can think that someone could make the argument that foreign to foreign emails "should" be treated like foreign to foreign spoken communciations.

Now, whether that "like" treatment should involve a year's warrantless intercepts with no oversight and dependent upon an AG's reports only or not, might be a question in and of itself.

Whether the "fix" should be getting rid of the requirements - for both - that there is not going to be US persons intercepts, is a bigger question.

Whether the "fix" should include getting rid of the limiter of spoken communciations in such a broad fashion that all kinds of us based activities that are not going to exclude US person, should be included (i.e, using language that doesn't just limit to emails as a non-spoken carve out but is so broad as to allow all kinds of things including physical searches) then that is a bigger bigger question.

When you do all this with absolute reliance on the veracity of (and no oversight over) a fully corrupt DOJ and NSA and CIA who have been engaged in crimes and deception to Congress for years - - that is a bigger bigger bigger question.

When you do all this with an Executive also claiming unchecked power to engage in direct or by proxy kidnap, torture and murder of any foreign person (or US person for that matter) it desires, with no oversight - that is a bigger bigger bigger bigger question

When you also do all that with a new standard as well that everything you pick up in this manner is now fair game in criminal prosecutions, even though you would have never qualified for a criminal warrant to start with - well, then you've just said goodbye to the fourth in its entirety.

I got some coffee mugs awhile back from Russ Feingold's progressive patriots pac. They have chunks of the bill of rights redacted, but when you pour coffee in, the black redacts go away and the bill of rights reappears. They need to reissue them. Apparently Dems aren't too interested in having the Bill of Rights reappear when it may be at the cost of telecom contributions and power for their party after the next elections.

Yes, we need to know the back-story. Perhaps even the stuff that currently requires a security clearance. We need to know if the leadership was craven, coerced, bullied, threatened with an executive that would let Stuff Happen, etc.

(Note that the talk of an August-September threat faded away after the FISA headless chicken act in Congress.)

I still think that the imminent threat was that the most egregious details of Program X would be made public, whether as a result of the 9th Circuit hearings or reporting on Gonzales. That's been forestalled.

bmaz and mary, I have to qualify my views somewhat, because we are all speculating in the dark about whatever the real problem is if there was a problem. I assume, perhaps stupidly given the events, that we won't pass anything unless there is some real need. Otherwise I am fine with just letting it lapse as, I note, is scarecrow at FDL.

masaccio - Heh. I just a few minutes ago saw Scarecrow's post from this morning. For some strange reason, my Safari browser suddenly quit being capable of opening FDL a couple of days ago. Everything else just fine; FDL no. So I have to switch to Firefox and that is a hassle so I have not been keeping as good of track of FDL the last two days. At any rate, I read Scarecrow's post thoroughly and "wow. ok. That's where masaccio got that point of view and I see it a little better now (because of all the surrounding discussion, not because he was more clear). I came back here to say that I at least understood it better and immediately realized that it looks very much like Scarecrow was influenced by your words not the other way around. I fully understand and respect your position. I think you have hit upon a critical cog in my thinking that permits opinion here. I fully believe that, until proven otherwise, that they can accomplish what needs to be done within a constitutional and judicially supervised framework; and I also think they will, as they have repeatedly stated, do whatever they want anyway. That underlying my thought process, I can make the leap to there being no problem with trying to repeal what was just passed. The Bushies will do what they are going to do anyway, and the Democrats cannot possibly look any weaker or lamer than they already do. Bottom line is, like you say, I dunno; but that is where I am hanging my hat until there is convincing evidence that I am wrong. Either way, these people must be stopped and some actual practical intelligence lent to this whole area.

bmaz, thanks. I see your point, and I agree that repeal would be ideal, if for no other reason than to end the validity of the 1 year warrants earlier. The ability of the dems to screw up legislation is just too scary for me right now, so I would avoid repeal legislation unless we have a solid vote count saying it will pass with a good, safe majority. You may be right, and I may be too cautious on this point, which is not uncommon for me.

By the way, firefox has some problem with FDL. It often gets hung up, at least for me, on some site called dgspecificclick. I tried to find that site without success. Once upon a time there was some feature of my browser that would not let a site call an unrelated site. I would like to have that back.